United States District Court, D. Maine
TINA L. HUTCHINSON, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDED DECISION 
JOHN H. RICH, III, Magistrate Judge.
This Supplemental Security Income ("SSI") appeal raises the question of whether the administrative law judge supportably found the plaintiff capable of performing work existing in significant numbers in the national economy. The plaintiff seeks remand on the bases that the administrative law judge erred in finding her major depressive disorder and borderline personality disorder nonsevere impairments, in failing to give greatest or, at least, substantial weight to the findings of two examining consultants, Karla Diffin, Ph.D., and William M. Barter, Ph.D., regarding her mental residual functional capacity ("RFC"), and in omitting to include, as part of her physical RFC, a need to have unscheduled breaks to wrap and rewrap compression bandages and to move about. See Plaintiff's Statement of Errors ("Statement of Errors") (ECF No. 15) at 3-10. I find no reversible error and, accordingly, recommend that the court affirm the decision.
Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. § 416.920; Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the administrative law judge found, in relevant part, that the plaintiff had severe impairments of mild degenerative disc disease, mild degenerative joint disease of the left knee, obesity, and lower extremity edema, Finding 2, Record at 14; that she retained the RFC to perform light work, as defined in 20 C.F.R. § 416.967(b), and could lift and carry 10 pounds frequently and up to 20 pounds occasionally, stand/walk for about two hours in an eight-hour workday, and sit for about six hours in an eight-hour workday, but required the opportunity to stand for a few seconds at a time between normal breaks, was able to push/pull within her weight tolerances for lifting/carrying, could never crouch, kneel, crawl, or climb ladders, ropes, or scaffolds, could occasionally climb stairs/ramps, balance, and stoop, and needed to avoid irregular terrain and unprotected heights, Finding 4, id. at 17; that, considering her age (43 years old, defined as a younger individual, on the date that she filed her application for SSI benefits, January 25, 2011), education (high school plus one year of college), work experience (transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that she could perform, Findings 6-9, id. at 21-22; and that she, therefore, had not been disabled since January 25, 2011, Finding 10, id. at 23. The Appeals Council declined to review the decision, id. at 1-3, making the decision the final determination of the commissioner, 20 C.F.R. § 416.1481; Dupuis v. Secretary of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).
The standard of review of the commissioner's decision is whether the determination made is supported by substantial evidence. 42 U.S.C. § 1383(c)(3); Manso-Pizarro v. Secretary of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Secretary of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).
The administrative law judge reached Step 5 of the sequential evaluation process, at which stage the burden of proof shifts to the commissioner to show that a claimant can perform work other than her past relevant work. 20 C.F.R. § 416.920(g); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support of the commissioner's findings regarding the plaintiff's RFC to perform such other work. Rosado v. Secretary of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).
A. Failure to Find Severe Mental Impairments
The administrative law judge noted that he found the plaintiff's affective disorder/major depressive disorder and personality disorder/borderline personality disorder, considered singly or in combination, nonsevere, stating that they had been "managed well with medications" and were "not associated with any severe limitations" and that "[m]ental status examinations in the record [were] within normal limits." Record at 15. In accordance with the commissioner's psychiatric review technique, see 20 C.F.R. § 416.920a, he assessed the severity of her mental functional limitations as follows:
The first functional area is activities of daily living. In this area, the [plaintiff] has mild limitation. In the record, [she] states that she gets her son off to school, does household chores, cares for her own personal needs, takes care of her cat, shops, helps her son with homework, makes dinner, reads, watches television and plays computer games.
The next functional area is social functioning. In this area, the [plaintiff] has mild limitation. She stated in the record that she spends time with others watching television and talking. She interacts daily with her son.
The third functional area is concentration, persistence or pace. In this area, the [plaintiff] has mild limitation. She is able to watch television regularly, play computer games and help her son with his homework.
The [plaintiff] has not experienced episodes of decompensation which have been of extended duration. The medical record contains no such references.
Record at 15 (citations omitted). He, therefore, concluded that her mental impairments were nonsevere. See id.; 20 C.F.R. § 416.920a(d)(1) ("If we rate the degree of your limitation in the first three functional areas as none' or mild' and none' in the fourth area, we will generally conclude that your impairment(s) is not severe, unless the evidence otherwise indicates that there is more than a minimal limitation in your ability to do basic work activities.") (citation omitted).
He also discussed the plaintiff's mental impairments at length in the context of assessing her mental RFC, stating, in relevant part:
As Dr. Knox [agency nonexamining consultant Thomas Knox, Ph.D.] stated in his July 12, 2011 mental assessment for DDS [Disability Determination Services], the [plaintiff's] anxiety and depression are "well managed" with medications and are not associated with severe limitations. Christine Charest, LMFT, the [plaintiff's] treating therapist at Sweetser since 2008, has provided therapy notes that describe the [plaintiff] as having an agitated mood, feelings of being overwhelmed with responsibilities including her son's special education needs, and relationship issues with her current boyfriend. Ms. Charest's notes essentially document talk therapy with problem-solving, and some [plaintiff] improvement in understanding and dealing with her issues. 2010 to February 2012 progress notes from Tri-County ...